Law And Morality Flashcards
What is law?
Austin/ command theorys
John Austin
Law is a command from a sovereign who everyone has to obey, and it is reinforced by a sanction
Law is the expressed wish of the sovereign and is distinguishable from other commands such as those from god or an employer
What are morals?
Moral values of communities lay down a framework for how people should behave
Morality can differ from culture to culture and from individual to individual, although there is some behaviour that is universally unacceptable
Morality is more to do with beliefs so can be affected by religion (christianity-Bible and islam qur’an both of thee books provide a moral code for their followers)
We all have a moral code of some kind which defines what we think is and is not acceptable behaviour
The law of a country will reflect the moral values accepted by the majority of the people
The diversity of moral views?
Durkheim- it almost impossible to find a single set of moral values that would be acceptable to all members of a modern society
The views of different societies and even within a society can vary significantly on difficult ethical issues such as euthanasia, pornography, drugs etc
However there do appear to be certain core morals that are generally accepted all of society, and these are usually associated with life and death issues
However even then there is also disagreement
While most people see any form of killing as wrong there are vastly opposing views on whether abortion is the taking of a human life or merely a woman exercising her rights of her own body
Morals can clearly change and develop, e.g. Views on homosexuality have altered since the trial of Oscar Wilde
The differences between law and morality
LAW Origins
Origins- it is generally possible to trace legal rules back to their source
For centuries the most creative source of legal rules has been the common law e.g. Tort and contract which have been developed incrementally by judges
Other sources (Parliament), the law during 20th century, parliament became increasingly active as a source of law e.g. In Herrington Parliament passed occupiers liability act to establish new rules concerning the liability of occupiers for trespassers
In recent times the EU has become a source of law making in the EU through treaties, directives, regulations and decisions e.g a 1993 directive established a 48 hour maximum working week and laid down requirements for rest and breaks.
Difference between law and morality
Moral rules
Origin
Moral rules are harder to trade back to origin
Many moralities are based upon religious teachings e.g holy texts which can be traced back to source e.g. Ten Commandments 1513 bc
They develop morale outlooks based on these texts-e.g. Pre marital sex
For others morality is based upon upbringing upon peer views or upon leanings of the conscience
Difference between law and morality
Law
Date of commencement
Legal rules generally have a start date
Acts of parliament will come Into force at a specified time either at midnight after royal assent or at a later date
E.g. The human rights act 1998 1st October 2000
Similarly EU law becomes operative at a given date
Rules set by judicial precedent operate from the date of the final decision
Difference between morality and law
Date of commencement
Morality
Built up over time in relation to a wider change in social attitudes
E.g. Premarital sex
They Have no specific date
Difference between law and morality
Their enforcement
Law
Legal rules can be enforced
Sanctions are available when an individual breaks the law
In tort law and contract law damages are awarded
Difference between law and morality
Morality
Their enforcement
Sanctions may also be available for Those who breach moral codes
E.g. A religious group may excommunicate a member for breaking religious rules
More often moral rules are enforced through disapproval or social ostracism
E.g. Throwing out an older brother for doing drugs so the younger brother doesn’t learn
Moral rules are less enforceable than legal rules
Difference between law and morality
Their ease of change
Law
The rules legal are relatively easy to change as Parliament has authority to pass a law whenever they want
This may be due to an emergency situation, a distasteful court judgement or a proposal form from a reform body
In practice however it is often slow to respond to change, courts also have the power to change legal rules (R V G)
Difference between law and morality
Their ease of change
Moral
Moral rules take longer to change over decades/centuries
E.g. Overtime attitudes to Smoking have become more negative, which has been encouraged by health schemes and adverts
Differences between law and morals
Law
To discover the precise content
E.g. S9 of the Theft Act 1968 will show the AR and MR for burglary
Decisions of judges will be reported in law reports and newspapers
However uncertainty may arise when an act is amended e.g. Sexual offences act 2003 where intent to rape will no longer provide the MR for burglary
Uncertainty may also arise where there are conflicting precedents or where a precedent has been distinguished e.g. Brown and Wilson
Difference between law and morality
Morality
Their certainty of content
The content rules may also be clear ; e.g. Rules on etiquette are in books
Knowledge of the content of moral rules Can often be acquired informally through exposure to them in the setting where they are applied , whether that is the family home,playground, or football pitch
Difference between law and morality
Law
Application of the rules
Legal rules apply to everyone and they must be obeyed
E.g. Assault
Difference between law and moral
Law
Application of the rules
Moral rules range in application from enjoying almost universal adoptions to having one marginal acceptance
